Chapter 8The new Regulation,
its operation and new challenges to secrecy The new Regulation was formally
adopted on 30 May 2001 and came into effect on 3 December 2001.
A deadline was set for 3 June 2002 when the European Commission
and the European Parliament had to provide a public register
of documents on the internet. Regulation
1049/2001

A "third party" is any person or "entity outside
the institution concerned, including the Member States, other
Community or non-Community institutions and bodies and third
countries" (Art 3.b). Here the Regulation starts to get
problematic by the inclusion of EU Member States (ie: EU governments)
who collectively comprise the Council of the European Union -
as we shall see this allows them (and others) to veto access
to documents they have submitted into the decision-making process.

Article 4 deals with the "Exceptions" (grounds on
which access to documents can be refused) which has four categories.
First, there are the core issues: public security (including
policing and immigration), defence and military matters, international
relations and monetary and economic policy (Art 4.1.a). Here
documents "shall" be refused if their disclosure: "would
undermine the protection of the public interest". There
is no overriding public interest test for giving access. Thus
documents which most concern peoples' rights and liberties both
within and outside the EU are the most protected from public
view.

The second category covering commercial interests, court proceedings
and legal advice, inspections, investigations and audits documents
also "shall" be refused where disclosure "would
undermine the protection of" but here there is a test: "unless
there is an overriding public interest in disclosure" (Art
4.2).

The third category effectively covers the "space to think"
issue. Documents drawn up for "internal use" or received
by an institution where a decision has not been taken "shall
be refused" if disclosure "would seriously undermine
the institution's decision-making process" - "unless
there is an overriding public interest in disclosure" (Art
4.3). The problem for applicants is that until they see the document
the test of "seriously" undermining the decision-making
process and any public interest is entirely reliant on the view
of the institution. Refusal of access on these grounds is largely
used to exclude from public view, and debate, issues which might
be contentious until after they are adopted.

And this latter possibility is also covered by Art 4.3. This
says that documents "containing opinions for internal use
as part of deliberations and preliminary consultations.. shall
be refused even after the decision has been taken"
if it would "seriously undermine the institution's decision-making
process" - "unless there is an overriding public interest
in disclosure". Again the institution are allowed the discretion
to place documents into this category with the effect that we
may know the final decision but not the steps that led to it
and, again, showing that there is an "overriding public
interest in disclosure" is often hard to prove.

The fourth category takes us back to "third party"
documents. Articles 4.4 and 4.5 say that an institution "shall"
consult the third party before releasing a document (unless it
is "clear", to the institution, that it should or should
not be disclosed). An EU Member State can also "request"
that one of its documents is not disclosed "without its
prior agreement".

Article 4.6. allows for "partial access" to a document
for the parts not covered by one of the exceptions. This came
about following a ruling by the Court of First Instance in the
Heidi Hautala case (see below).

Article 5 places limits on national freedom of information
laws. Effectively Member States cannot give out an EU document
(unless it is "clear" that it should or should not
be disclosed) without consulting the institution concerned or
they can simply refer the request to it.

Article 6 deals with applications for documents. The infamous
exclusion of "repeat" or "repetitive" applications
is dropped but "very large documents" is kept from
the 1993 Decision and extended by the addition of "a very
large number of documents" where the institution "may
confer" with the applicant to find a "fair solution"
(this previously led to a number of successful complaints to
the Ombudsman).

The time for responding to requests has been shortened from
four weeks to three weeks (15 working days) (Art 7.1). But there
is another "catch-all" in Article 7.3 which allows
in "exceptional cases" for this time limit to be extended
by another three weeks. In practice "exceptional" can
mean regular to consult within an institution or with a "third
party".

Article 9 deals with "sensitive documents" and covers
those "originating from the institution or agencies established
by them, from Member States, third countries or International
Organisations" which are classified as "TOP SECRET,
SECRET or CONFIDENTIAL" covered in Article 4.1.a. What is
interesting is that the classification "RESTRICTED"
is not mentioned and is a category most likely to be used to
hide potentially embarrassing issues - as far as can be ascertained
there are no classified documents or "RESTRICTED" documents
on the public register (which only contains unclassified LIMITE
documents). This renders Article 9.3 which says "Sensitive
documents shall be recorded in the register or released only
with the consent of the originator" pretty meaningless.

Article 9.7 underlies the agreement between the Council and
the European Parliament on its access to "sensitive documents".
(2)

Article 11 deals with the critical issue of what documents
will appear on the public registers of the institutions. Article
11.1 says:

"References to documents shall be recorded in the
register without delay"

It is certainly questionable whether at least the Commission
is anywhere near meeting this obligation.

Article 11.2 says every reference to a document should contain
a reference number and "the subject matter and/or a short
description of the content of the document", a standard
which quite a large number of documents on the Council register
do not meet. This article also says that references to documents
must not "undermine protection of the interests in Article
4". This is the only limiting factor set out in
Article 11 as to which references to documents should or should
not appear on the register and, at present, it can only be observed
that all three institutions are taking a highly restricted interpretation
which may be contrary to the terms of the Regulation.
(3)

This Article is certainly open to the interpretation that
references to all documents have to be placed on the
public registers "without delay" unless such references
would "undermine protection of the interests in Article
4" - but even this is a limited discretion as it has to
be applied in a narrow and specific way and cannot be applied
to whole categories of documents. (4)

Article 12 covers the release of the text of documents (references
alone are of limited value if applicants cannot get access to
the text itself) and has three references to "as far as
possible" thus allowing the institutions wide discretion.
So, documents should be directly accessible "as far as possible".
And, "where possible" non-legislative documents covering
the "development of policy or strategy" (this covers
the important issue of implementation) should be accessible.
And if direct access is not given then "as far as possible"
an the institution should "indicate where the documents
is located".

Article 12.2 deals with direct access to: "documents
drawn up or received in the course of the procedures for the
adoption of acts which are legally binding" on Member States
subject to the exceptions in Article 4 and 9. For the Commission
this should mean that all documents concerned with a Regulation
or a Framework Decision (on justice and home affairs issues)
should be on the register - the initial consultations with member
states and "expert groups", inter-departmental consultations,
the different versions of the final adopted measure and the minutes
of any meeting discussing the issue.

Article 15 says the institutions should "facilitate"
the right of access to documents as a matter of "good administrative
practice". For the citizen this means they need information
on the decision-making structures, committees and working parties
and their powers - as yet these are not available.

Article 17 says that each institution has to publish an annual
report for the preceding year on the number of requests for access
which are refused and the reasons and "the number of sensitive
documents not recorded on the register" (Art 17.1). This
means that the three institutions have to publish annual reports
by 3 December 2002. In addition, the Commission has to publish
a report on the implementation of the Regulation, at the latest
by 31 January 2004 (art 17.2).

Article 18 says that "within six months of the entry
into force" (that is, by 3 June 2002) the Commission shall
examine the "conformity" of the Regulation on EC historical
archives with this Regulation (art 18.2) to "ensure the
preservation and archiving of documents to the fullest extent
possible" - the existing Regulation allows for no such discretion
it lays down clear obligations. Nor does this examination appear
to have been carried out.

Steve Peers sums up his overall reaction as:

"the new Regulation ultimately contains several steps
forward, counterbalanced by several steps backward and a number
of disappointments" (5)

The institutions interpretation of the Regulation

The Regulation, in turn, required each institution to amend
its Rules of Procedure and, in the case of the Commission and
the European Parliament the creation of a public registers of
documents on the internet.

The position and practice of the Council of the European Union
was pretty clear. (6)

Its internal rules of procedure follow almost exactly the
terms of the new Regulation. The Council also has had a public
register of documents on the internet since January 1999. The
positions of the European Commission and the European Parliament
are less clear.

What will be on the European Commission and European Parliament
public registers? Article 11 of the new Regulation states that
each institution shall provide a public register, that "references
to documents shall be recorded without delay". Quite extraordinarily
the Commission Rules of Procedure say:

"The coverage of the register provided for by Article
11 of Regulation (EC) No 1049/2001 shall be extended gradually"
(emphasis added)

For the European Parliament its formally adopted "Register
of references" make no such limitations. However, its internal
discussions indicate that there are at least four categories
of documents which will never be made accessible to the public.
By June 2002 it was planned that the parliament's public register
will only cover legislative documents under what is called a
"minimal" plan. Stages two and three will follow at
some undefined point in time.

On 3 June 2002 the Commission and European Parliament's registers
went online (see: Useful
addresses and websites). The Commission's can
only be viewed as minimalist mostly covering documents due to
go into the Official Journal and some others - there
is obviously a long battle ahead to get the most secretive of
the three institutions to open up. (7) The
European Parliament's register does give access to reports, amendments
in plenaries, resolutions and questions, but again has a long
way to go to match the Council's register.

While the Council's implementing rules follow the structure
of the new Regulation those of the other two institutions do
not. For example, both the Commission and the European Parliament
have introduced a new, and unfounded, power to exercise discretion
where an application for documents is: "complex" (Commission
Article 2/EP Article 3) - there is no such concept in the Regulation.

Surprisingly the European Parliament rules seek to establish
a further discretionary power under Article 23 of its rules covering
"repeated or successive applications concerning very long
documents or a large number of documents". The issue of
"repeated" applications was the subject of a successful
complaint against the Council by Statewatch through the European
Ombudsman and the substantive idea was deleted in the negotiations
on the new Regulation. Diligent researchers will often make "repeated"
and "successive" applications for a large number of
documents and it should not be the prerogative of an institution
to decide how many documents should be made available.

The European Commission is clearly reluctant to admit that
it lost its demand that institutions and officials should have
an automatic "space to think". The Regulation says,
in Article 4.3 para 1, that a document can be refused before
a decision is taken "if disclosure would seriously undermine
the institution's decision-making process, unless there is an
overriding public interest in disclosure" (emphasis added)
and Article 4.3 para 2 says that documents "containing opinions
for internal use as part of deliberations and preliminary consultations
shall be refused even after the decision has been taken if disclosure
of the document would seriously undermine the institution's decision-making
process, unless there is an overriding public interest in disclosure"
(emphasis added). In short two tests are laid down, first that
the release a document must "seriously undermine" the
decision making process and second, that a view must be taken
as to whether there is anyway an "overriding public interest"
in disclosure.

Under Article 9 ("Documents directly accessible to the
public") of its rules the Commission states that documents
can be made available after adoption by the Commission (or Council)
where it is clear that none of the exceptions in Article 4 of
the Regulation apply and: "provided they do not reflect
opinions or individual positions".

This is clearly an abuse of the new Regulation. The only basis
on which documents for so-called "internal use" ("opinion
or individual positions") can be refused is under Article
4.3 of the Regulation as set out above. There is no power whatsoever
which suggests that "opinions or individual positions"
are additional grounds for refusing access over and above Article
4.3.

This confused Commission position is also reflected in its:
"Access to European Commission documents - A Citizens Guide"
on its Access to documents webpage (see below). Under the heading:
"In practice, what kind of document can the Commission refuse
to release?" it says access might be refused where a document:
"expresses the personal opinions of Commission officials
or advice from a Commission department". Taken literally
this could mean that all preparatory documents prior to the adopted
version could be refused. The Citizens Guide defines an "internal
document" as one which "has not been finalised or is
not intended for publication" and gives examples including:
preliminary drafts, interim reports, draft legislative proposals
or decisions, memorandum or studies which form the background
to Commission decisions and policy measures and correspondence.

European Parliament takes Council to court over "Solana
Two". In October 2001 the European Parliament took the Council
of the European Union to the Court of Justice over its failure
to consult the parliament over the adoption of a new classification
code for access to documents it adopted in March 2001. The parliament
argued that this was quite inappropriate as the institutions
(the parliament, Council and the European Commission) were in
the process of discussing a new Regulation on public access to
documents. (9) See: EP
takes Council to Court plus full-text of the Security Regulations

The Secretary-General of the Council, Mr Solana, drew up the
new classification code, which was simply nodded through by the
General Affairs Council of the Council of the European Union
on 19 March 2001 (it was an "A" point, adopted without
debate) - the European Parliament was not consulted. This followed
the infamous "Solana Decision" in July 2000.

The Decision completely changed the Council's classification
codes to meet NATO demands. Although it was presented as only
covering "Top Secret", "Secret" and "Confidential"
documents it also covers the lowest level of classified documents,
"Restricted", and completely redefines this too. It
also extends classifications to all areas of EU activity.

As noted in the Explanatory Memorandum of 18 January 2001
from the UK Foreign Office:

"the Regulation will also mean that sensitive documents
in other fields - justice and home affairs, for example, are
kept sufficiently secure."

This is a clear extension of classification rules and security
procedures from the "Solana Decision" adopted in August
2000 which only covered defence and foreign policy (ESDP) issues.

There is a major change to the definition of "Restricted",
the lowest level of classification, which in the previous code
was defined as:

"RESTREINT: information the unauthorised disclosure
of which would be inappropriate or premature"

In the Annex, page 19, to the Decision this is redefined as:

"EU RESTRICTED: This classification shall be applied
to information and material the unauthorised disclosure of which
could be disadvantageous to the interests of the European Union
or one or more of its Member States."

Here "Restricted" is defined as applying to:

"The compromise of assets marked EU RESTRICTED would
be likely to: adversely affect diplomatic relations; cause substantial
distress to individuals; make it more difficult to maintain operational
effectiveness or security of Member States or other contributors
forces; cause financial loss or facilitate improper gain or advantage
for individuals or companies; breach proper undertakings to maintain
the confidence of information provided by third parties; breach
statutory restrictions on disclosure of information; prejudice
the investigation or facilitate the commission of crime; disadvantage
EU or Member States in commercial or policy negotiations with
others; impede the effective development or operation of EU policies;
undermine the proper management of the EU and its operations."
(page 78)

This lengthy definition is clearly much, much wider than that
of "inappropriate or premature" release of documents
in the 27 July 2000 Decision. Furthermore, categories like "prejudice
the investigation or facilitate the commission of crime"
or "impede the effective development or operation of EU
policies" or "undermine the proper management of the
EU and its operations" are so wide as to be open to abuse. (10)

Two more Statewatch cases come to a head

In December 2001 the Council of the European Union refused
Statewatch copies of the agendas of the EU-US Senior
Level Group and the EU-US Task Force because the US vetoed access
to them. Statewatch appealed against the initial decision
of the General Secretariat of the Council and, finally, on 6
March this year 35 agendas were released (ten of the meetings
were conducted by "video-conferencing"). However, the
released agendas contained no less that 458 sections of information
blocked out with the phrase:

"Not accessible to the public"

In July 2001 - after a four year fight and two successful
complaints to the European Ombudsman - Statewatch finally obtained
the agendas of ten EU-US high-level planning meetings between
September 1996 and February 1998. The agendas concern meetings
of the "Senior Level Group" and the "EU-US Task
Force" set up under the New Transatlantic Agenda agreed
in 1995, see: Ombudsman
Decision

On 23 July 2001 Statewatch applied to the Council for the
agendas of these two groups after 25 February 1998. On 22 August
the Council extended the deadline for replying by one month and
on 20 September the Council asked for more time to carry out
"consultations". As no reply was received Statewatch
wrote again to the Council on 15 December. On 18 December the
Council finally replied - after the new Regulation on access
to documents had come into force on 3 December 2001.

Their letter said that the agendas of the "Senior Level
Group" and the "EU-US Task Force" were "drawn
up jointly by the EU and US side" and are "at least
partly- third party documents". The Council had therefore
"consulted the US authorities" and:

"the US authorities said they were opposed to releasing
the documents in question, as in their view they are to be considered
as "government-to-government documents" not intended
for - even partial - publication"

In these circumstances, the General Secretariat [of the Council]
cannot but conclude that the release of these agendas would significantly
disturb the good functioning of the cooperation between the European
Union and the United States"

On 6 January 2002 Statewatch lodged an appeal against the
refusal of access to the agendas:

a) contesting the issue of "co-authors" which was
expressly addressed, and rejected, by the European Ombudsman
in the original Statewatch complaints;

b) saying that the Council's claim that releasing the agendas
could "significantly disturb the good functioning of cooperation
between the EU and the US" is preposterous - the 1996-1998
released agendas showed they contain no sensitive information;

c) The Council's view that because the US objects to the release
of the agendas that it has no choice but to refuse access is
contrary to its obligations under the Regulation to reach an
independent decision.

The Council again asked for more time to "consult"
before releasing the agendas (or parts of them) in March. Its
answer to the appeal said that:

"the Council decided to refuse access to specific
parts of the documents which contain annotations intended to
guide the discussion and were meant for internal consideration
only. The release of those parts could significantly disturb
the good functioning of the cooperation between the EU and the
United States and potentially have an impact on the European
Union's relations with third countries"

The US authorities, having first opposed any release of the
agendas (even partial access), did a U-turn and reluctantly agreed
provided 458 deletions were made.

What the documents tell us

All that can gleaned from the agenda alone is the scope of
these high-level meetings between the EU and the US. The World
Trade Organisations (WTO), the Transatlantic Business Dialogue
(TABD) and the Transatlantic Labour Dialogue (TALD) figure regularly
as topics, as do discussions on China (Human Rights), Russia,
Ukraine, Turkey, data protection (safe harbour), UN reform and
finances, Kyoto, Plan Colombia, climate change.

The agendas show that justice and home affairs issues are
consistently on the agendas. Drugs and the trafficking in women
together with "Law enforcement: organised crime, computer
[Not accessible to the public], stolen vehicles proposal,
Europol exchange follow-up" and more recently "asylum/migration
and police cooperation".

European Ombudsman calls on the European Parliament to
take action on Statewatch case

The European Ombudsman, Mr Jacob Soderman, has sent a Special
Report to the European Parliament calling on it to intervene
in order to get the Council of the European Union (the 15 EU
governments) to obey the Ombudsman's findings that documents
should be given to Statewatch, see: Special
Report to the European Parliament

Statewatch lodged a complaint with the Ombudsman concerning
the Council failure to respond to requests for documents and
information in July 2000. The first was a request to the Council
for access to all the documents considered at a meeting of the
Police Cooperation Working Party (Experts' meeting - Interception
of Telecommunications) on 3-4 September 1998 - this concerned
the discussion over a document, ENFOPOL 98, to extend telecommunications
surveillance to cover e-mails and mobile phones. The Council
tried to deny the existence of six documents listed in the "Outcome
of proceedings" (the minutes) of the meeting.

The second aspect of the complaint concerns Statewatch's
request for a list of the documents considered at a series of
meetings in January 1999 including any documents not listed on
the agenda or in the "Outcome of proceedings" such
as "Room documents, non-papers, meetings documents, SN documents".
Statewatch argued that, under the Code of Good Administrative
Behaviour, citizens were entitled to have a list of all the documents
considered so that they could see which views/positions were
accepted and which were rejected. The Council failed to supply
the lists. Moreover, Statewatch's complaint noted that
the Council issued the following instruction when its public
register of documents went online on 1 January 1999:

"Confidential, Restreint, SN and non-paper documents
will not be included in the public register. For this reason,
from now on these documents will not be mentioned in official
Council documents (in particular: on provisional agendas and
in outcomes of proceedings)."

The Ombudsman found that "the Council's failure to maintain
a list or register of all documents put before the Council constituted
maladministration and made a Recommendation to the Council. The
Council responded by saying it accepted this Recommendation but
the Ombudsman's Special Report concludes that its response:

"raise doubts as to whether the draft recommendations
will indeed be implemented"

The Ombudsman's view is that the "Council should establish
such a list and make it available to citizens. This is vital
so that citizens can use their right of access to documents properly".
The report concludes that under the new Regulation on access
to documents, which came into operation on 3 December the Council
is obliged to place all documents on the public register. (11)

This is only the sixth Special Reports that the European Ombudsman
has made to the European Parliament and is the strongest power
available to him - it usually follows the failure of one of the
institutions to respond positively to his Recommendations to
change their practices.

As this publication goes online the Special Report is being
considered by the Petitions Committee in the European Parliament.

Heidi Hautala MEP wins again in Court of Justice

On 6 December 2001 the Court of Justice upheld the decision
of the Court of First Instance in the case brought by Heidi Hautala
MEP against the Council of the European Union for refusing to
give access to its code on arms exports. The Court found that
the Council had refused to consider, or grant, partial access
to those sections of the document which were not covered by the
exception allowing refusal. The Court said that:

"The Council must promote the widest possible access
of the public to the documents it holds. If a document contains
confidential information, the Council must consider whether partial
access is possible"

On 3 July 1998 Arno Kuijer, university lecturer and researcher
from Utrecht in the Netherlands, applied to the Council for copies
of: a) reports from 1994-1997 and for 1998, on the situations
in 28 third countries in relation to asylum-seekers; b) "joint
missions or reports" carried out by EU member states and
sent to the Council's CIREA (Centre for Information, Discussion
and Exchange on Asylum), "reports drawn up for CIREA";
c) a list of "contact persons" used by CIREA in asylum
cases.

He was refused access to these documents and told that the
CIREA reports (b. above) did not exist. Arno Kuijer made a confirmatory
application appealing against the decision and saying that he
believe the documents (b. above) did exist. The Council turned
down the appeal on general grounds under Article 4.1 of the 1993
Decision saying that disclosure could undermine international
relations. Perversely, the Council tried to argue that the 1993
Decision on public access was "to allow the public to have
access to the Council's documents, not to the information contained
in them".

The decision of the Court , on 6 April 2000, in finding against
the Council broke new ground. The Court said the applicant should
be granted access to the documents with the exception of those
parts properly covered by the exception under Article 4.1. The
Council should supply the list of contact names (without the
fax and phone numbers as the applicant had suggested). An examination
of 10 reports supplied showed that the Council had failed to
show how Article 4.1. applied to the documents refused and had,
in the applicant's words, used "short, identical and ritualistic"
responses. The Court said that the content of the documents "varies
considerably, not only in nature.. but also in the degree of
sensitivity". The critical finding of the Court was where
the applicant has put forward:

"factors capable of casting doubt on whether the first
refusal was well founded... the institution is obliged.. to state
why those factors are not such as might warrant a change in its
position."

This means that the Council has to answer the arguments put
forward by an applicant making an appeal - and cannot just ignore
them as it often does at present. (12)

However, on 5 June, the Council still refused access claiming
new grounds for refusal and the case went back to the Court of
Justice. In its judgment on 7 February 2002 the court found against
the Council new arguments.

The Council's basic argument was that the content of the documents
could be construed as criticism of the third countries in question
and that their disclosure could therefore be prejudicial to the
EU's relations with those countries. The court, having order
the production of the documents so that they could be examined,
dismissed this view on several grounds: i) the fact that the
documents contained "information or negative comments"
did not of itself mean there was a risk of the public interest
being undermined. Refusal must, the court said, "must be
founded on an analysis of factors specific to the contents or
context of each report"; ii) the documents contained analyses
of the political situation and many of the facts "have already
been made public" and the EU may "itself, through its
institutions, in particular the Council and the Presidency, [have]
already officially criticised the internal situation of the countries
concerned" and its relations "may be such that they
cannot be damage by disclosure of any criticism"; iii) the
court also said the Council "erred in law" when it
refused access to the names of contact persons which had been
made public in certain Member States.

Conclusion

We have come a long way since the first challenge by John
Carvel of the Guardian to the Council operation of the
1993 Decision on access to documents. Countless requests and
appeals, cases in the Court of First Instance (of the European
Court of Justice) and complaints to the European Ombudsman have
resulted major improvements.

"Democracy" and "democratic standards"
are not static, they are ever-changing. Governments and Ministers
may or may not be open and transparent and often seek to control
what is released and when it is released. Democracy cannot, and
should not, rely on them to maintain a democratic culture, rather
it is sustained by lively parliaments and an ever vigilant and
critical civil society.

The fight for freedom of information in the EU and against
secrecy is a small, but indispensable, contribution to this process.

Footnotes:

1. For a full analysis of the new Regulation
1049/2001 see: "The New Regulation on Access to Documents
- a critical analysis" by Steve Peers in the current "Handbook
on European Law".

3. A search of the Commission's register
for the period 3 June to 21 July showed only 18 documents produced
in this seven week period by Directorate General Justice and
Home Affairs on their register and only two of which were released
full-text and the Secretary General's Department has apparently
been doing no work because the search result shows: "0"

4. The only express exception to this in
Article 9.3 is that the originator of a "sensitive document"
must consent to a reference on the register. But it should be
noted that "sensitive documents" do not include the
"RESTRICTED" category.

5. see, Steve Peers, above.

6. The Council's public register of documents
- covers documents archived since January 1999 and only includes
non-classified documents (LIMITE). In December 2001 a total of
1,195 documents were listed as having been archived during the
month and the full-text was available for 735 documents and not
available for 460 documents, 62% were available and 38% were
not - and some of those were made available were the result of
people making applications for their release.

For the Rules of Procedure adopted by the three institutions
please see: FOI
in the EU

The new Regulation allows for "partial access" to
documents. ie: the contents of a document not covered by one
of the exceptions. The Council register notes the partial release
of a document but, instead of giving direct access online, a
person has to apply for it even though it has already been "released".

7. None of the institutions has prepared
and made available a description of their internal structures
or procedures which would allow citizens to understand the decision-making
and implementing practices (Code of Good Administrative Behaviour,
European Ombudsman).

8. The Council of Europe's "Group
of specialists on access to official information" produced
its final activity report which recommends a very limited form
of access to documents. In Article 1 of the draft recommendation
it defines an "official document" as any form of information
held by public authorities: "with the exception of documents
under preparation". It is also recommended that requests
should be refused if they are "manifestly unfounded",
unfounded that is in the eyes of the officials dealing with requests.
Indeed the Explanatory Memorandum's notes that this includes
"plainly abusive" requests where an applicant makes
"regular requests designed to hinder a department's normal
work". It was disappointing that the Council of Europe has
failed to give a positive lead on freedom of information/access
to documents especially for the new "democracies" of
central and eastern Europe. Source: Steering Committee for human
rights: Group of specialists on official access to information:
Final activity report (ref: DH-S-AC(2001)7), 24.9.01.

9. As this publication goes online it is
rumoured that the European Parliament will drop this case as
part of a "deal" over its access to "sensitive
documents".

10. Council Decision concerning the adoption
of Council Security Regulations.

11. This was the eighth successful complaint
that Statewatch has lodged against the Council on access to EU
documents.

12. Judgment of the Court of First Instance,
6 April 2000, in Case T-188/98, Arno Kuijer v Council of the
European Union: Kuijer
I judgment Kuijer
II judgment, 7 February 2002.